Washington Sec. Co. v. State, 28114.

• Citation: 114 P.2d 965,9 Wn.2d 197
• Decision Date: 13 June 1941
• Docket Number: 28114.
• Court: United States State Supreme Court of Washington
• Parties: WASHINGTON SEC. CO. v. STATE et al.

114 P.2d 965

9 Wn.2d 197

WASHINGTON SEC. CO. v. STATE et al.

No. 28114.

Supreme Court of Washington, En Banc.

June 13, 1941

Action by the Washington Security Company against the State and another, to recover money paid to the State for land to which the State had no title. From a judgment for plaintiff defendants appeal.

Reversed with directions.

MILLARD STEINERT, and SIMPSON, JJ., dissenting.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Smith Troy, W. A. Toner, and June Fowles, all of Olympia, for appellants.

Cyrus Happy and Horace G. Geer, both of Tacoma, for respondent.

JEFFERS, Justice.

This action was instituted by Washington Security Company, a corporation, against the state of Washington and A. C.

Martin commissioner of public lands, to recover from the state the sum of $951.30, together with interest thereon at six per cent per annum from August 20, 1926.

The complaint alleges that Gravelly lake is a non-navigable body of water, situated in Pierce county, Washington, covering approximately one hundred sixty-seven acres, the greatest depth being approximately ninety feet; that the lake is approximately forty-two hundred feet in length and twenty-eight hundred feet in width at the longest and widest points, has no surface or visible inlet or outlet, and is not connected with any other lake or stream.

The complaint further alleges that all the land abutting upon and adjacent to Gravelly lake is privately owned and used, consisting entirely of permanent homes and homesites; that there are no commercial enterprises of any kind or nature located upon the lake or the shores thereof, or immediately adjacent thereto; that none of the abutting land is owned by any municipal corporation; that on or about August 20, 1926, plaintiff corporation was the owner in fee simple of land abutting upon Gravelly lake (described in detail in the complaint), 'together with all shore lands of the second class situate in front of, adjacent to, or abutting upon the above described lots;' that prior to August 20, 1926, the state, by and through C. V. Savidge, the then duly elected and acting commissioner of public lands, represented to plaintiff that the state was the owner of the shore lands abutting the above described property of plaintiff, and advised plaintiff that such shore lands were to be disposed of and sold by the state.

The complaint states that plaintiff, acting upon these representations and statements made by the commissioner on behalf of the state, on August 20, 1926, purchased from the state the above described shorelands, for the sum of $951.30, receiving from the state a deed purporting to convey title to such shore lands, which deed was dated August 20, 1926, and duly filed for record on August 28, 1926.

The complaint further alleges that title to the shore lands so purchased by plaintiff was not at that time vested in the state, but title thereto was vested in plaintiff, as the abutting land owner; that prior to the sale of the shore lands to plaintiff, Gravelly lake had not been, nor has it since been, adjudicated to be a navigable body of water, but was and is now a non-navigable lake, which facts were not, on August 20, 1926, nor at any time prior to January 23, 1940, known to plaintiff; that on January 23, 1940, plaintiff made demand upon A. C. Martin, commissioner of public lands, for the return of the purchase price paid by it, in the sum of $951.30, together with interest at six per cent per annum from August 20, 1926, which repayment the commissioner refused to make.

The complaint then prays that Gravelly lake be decreed to be a non-navigable body of water, and that plaintiff have judgment against defendants for the above amounts.

To this complaint defendants demurred, and on May 15, 1940, the court entered an order overruling the demurrer. In a memorandum opinion filed May 7, 1940, the trial court stated that the only question Before it was whether or not the action had been commenced within the time limited by law, and further stated that this question had been determined adversely to the state in the case of Purdy v. State, 199 Wash. 638, 92 P.2d 880, on a state of facts on all fours with the case at bar.

After the state's demurrer had been overruled, defendants filed an answer, in which, by way of a further answer and affirmative defense, it is alleged that, according to to rules and decisions of this court, Gravelly lake was and at all times mentioned in the complaint had been a non-navigable body of water; that plaintiff, on August 20, 1926, and at any and all times subsequent thereto, had a right and privilege to have the lake adjudged and decreed to a non-navigable body of water, and had the right to the recovery of the sum of $951.30, paid on August 20, 1926; that the claim of plaintiff for a refund of the purchase price paid by it to the state had not been brought within the time limited by law, and as a matter of fact, has not been brought within thirteen years of the time when the same might have been instituted; that plaintiff's claim for refund is untimely, and that plaintiff has exercised no diligence whatever in seeking to recover the payment made by it to the state, and its claim is barred by laches and by neglect to proceed within a reasonable time.

Plaintiff interposed a motion to strike the affirmative matter in defendants' answer, and also demurred thereto, and thereafter, on June 25, 1940, the trial court entered an order denying plaintiff's motion to strike, and sustaining its demurrer.

The court also, on June 25, 1940, made and entered an order adjudging defendants to be in default, the order reciting that defendants refused to plead further in the action. On the same day the court made and entered findings of fact, conclusions of law and judgment, by which the court adjudged Gravelly lake to be a non-navigable body of water, and also gave judgment to plaintiff against defendants for $951.30, together with interest thereon at the rate of six per cent per annum, from August 20, 1926, until the judgment is paid and satisfied. Defendants have appealed from the judgment entered.

Appellants base their claim of error upon the court's holding that an upland proprietor who bought shore lands from the state was entitled to recover the purchase price and interest thereon, in an action instituted more than thirteen years after such payment to the state.

The sole question herein presented is whether or not respondent's cause of action is barred by the statute of limitations.

The same question is presented in this case whether we consider the action barred in two years or six years, although it seems to be conceded that if any statute of limitations is applicable, the six year statute applies.

The state purported to sell to respondent certain shore lands which the state did not own, but which belonged to respondent by virtue of its owning the abutting property. For this land, respondent paid to the state a consideration in money. There is no doubt in our minds but that, as a matter of law, unless the action is otherwise barred, respondent is entitled to a refund of the money paid to the state. See: Restatement of the Law of Restitution (1936) 110, § 24; 206-208, § 52.

'Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, except when in special cases a different limitation is prescribed by statute.' Rem.Rev.Stat. § 155.

A cause of action or suit arises, according to the universal rule in courts of both law and equity, when and as soon as the party has a right to apply to the proper tribunal for relief ( Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266); or, as stated in State ex rel. McMillan v. Miller, 108 Wash. 390, 184 P. 352, quoting from 17 R.C.I., 749; 'A cause of action accrues the moment the right to commence an action comes into existence.'

In Morton v. City of Nevada, C.C., 41 F. 582, 588, the rule is stated as follows, quoting from Palmer v. Palmer, 36 Mich. 487, 488, 24 Am.Rep. 605: 'A cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable.'

In the instant case, respondent, immediately upon payment by it to, and receipt by, the state of the purchase money, could have instituted an action to recover the purchase price paid. Morton v. City of Nevada, supra; Union Pac. Ry. Co. v. Barnes, 8 Cir., 64 F. 80.

The rule relative to the right of one in the position of respondent to recover is well stated in Leather Manufacturers' Bank v. Merchants' Bank, 128 U.S. 26, 9 S.Ct. 3, 5, 32 L.Ed. 342, as follows: 'Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when in fact he had no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use. His right of action accrues, and the statute of limitations begins to run, immediately upon the payment.'

We are satisfied that in the instant case no event had to occur Before respondent's right of action accrued. Nothing had to be alleged, or was alleged, in respondent's complaint which could not have been alleged immediately upon payment of the purchase price by respondent. Mere doubt in the mind of respondent as to its right to recover could not suspend the running of the...